April 30, 2009

Everybody Expects the Spanish Inquisition

At the end of an AP story on the extraordinary lengths to which the administration of Barack H. Obama is going to urge, cajole, and even bribe our "allies" into accepting released detainees from the Guantanamo Bay Detention Facility -- so that the president can shut it down and bask in the warm glow of being patted on the head by Europe -- I stumbled across this arresting exchange:

In speaking to reporters Wednesday, [Attorney General Eric] Holder also said it is possible the United States could cooperate with a foreign court's investigation of Bush administration officials.

Holder spoke before the announcement that a Spanish magistrate had opened an investigation of Bush officials on harsh interrogation methods. Holder didn't rule out cooperating in such a probe.

"Obviously, we would look at any request that would come from a court in any country and see how and whether we should comply with it," Holder said. [Any country? Any country at all can open a "probe" of American officials, and Holder will seriously consider cooperating with it?]

"This is an administration that is determined to conduct itself by the rule of law and to the extent that we receive lawful requests from an appropriately created court, we would obviously respond to it," he said.

Oh yes, the "rule of law." But whose law? The rule of law in Spain forbids any interrogation of captured unlawful combatants and terrorists without them having an attorney present to object and demand classified intelligence; is that our new policy too? For that matter, the rule of law in Saudi Arabia demands that rape victims be flogged or even stoned to death. Will we "cooperate" on Saudi probes of such promiscuous women here in the United States?

The juxtaposition of Holder's offer of "cooperation" (complicity) and the hoped-for acceptance of Gitmo detainees strongly suggests that a grand bargain may be in the works: European countries may accept releasees in exchange for American recognition of the "universal jurisdiction" of individual courts of "human rights."

Does our looming cooperation imply that we might even look favorably upon a demand that we arrest and extradite named defendants to stand in the dock of such courts? Perhaps suspecting that he had given a bit too obvious a "tell," Holder seemed to retreat slightly (but only slightly):

Pressed on whether that meant the United States would cooperate with a foreign court prosecuting Bush administration officials, Holder said he was talking about evidentiary requests and would review any such request to see if the U.S. would comply.

But this is manifestly absurd: If the Attorney General of the United States once accepts the absurdity that a Spanish court and Spanish judge, Baltasar Garzón, sitting in Spain and operating under Spanish law, actually have jurisdiction over American officials making official policy decisions inside the United States about how American military and intelligence agents can interrogate detainees at an American Marine Corps base inside Cuba... then how can Holder later limit such jurisdiction to "evidentiary requests?"

If Garzón has legal authority to demand we hand over evidence, he also has legal authority to demand we hand over "war criminals," from American military personnel, to John Yoo, to Jay Bybee, to William Haynes, to Douglas Feith, to Alberto Gonzales, to Richard Myers, to Dick Cheney -- even to former President George W. Bush himself.

This is even more outrageous than the suggestion that we prosecute any of these individuals ourselves, or that we form a "truth commission" and haul them before it for public show trials. This is, in essence, outsourcing the prosecution of the previous administration to foreign courts. Call it "extraordinary judicion."

If we ever once accept that a European court -- and not even a recognized "international" one! -- has jurisdiction over actions committed by American officials here in the United States, and can prosecute them for "crimes" that are not even recognized here, then we have crossed a line from which we can never retreat: The United States will cease to be a sovereign power.

If Eric Holder and Barack Obama accept this idea, they will actually have brought about what used to be a paranoid fantasy among the John Birch Society and other lunatics -- "one-world government," run according to European, not American rules.

Even if we do not actually arrest and extradite suspects in a European crimes-against-humanity witch hunt, by acquiescing and even cooperating with such unconstitutional probes of American citizens, we could make it impossible for former Bush-administration officials ever to travel outside the United States: By accepting the jurisdiction of such "world courts" and blessing their proceedings, President Obama signals that he will stand by and do nothing if, say, Dick Cheney or George Bush is seized abroad and sent to some star-chamber tribunal for prosecution. (What would the former president's Secret Service contingent do -- shoot it out with Italian or German police?)

Note in this WaPo article that the administration has already cooperated with Garzón's kangaroo court, albeit with boatloads of plausible deniability:

In Madrid, a Spanish investigating magistrate announced Wednesday that he has opened a wide-ranging criminal investigation into what he called "a systemic plan of torture" at Guantanamo and other places where the U.S. government held terrorism suspects after the Sept. 11, 2001, attacks.

Judge Baltasar Garzón said his probe was based largely on complaints filed by four former prisoners at Guantanamo who were transferred to Spain. But in court papers, he also said his investigation was prompted by the release of secret U.S. legal opinions authorizing the CIA to subject terrorism suspects to waterboarding and other tactics.

Spain and some other European countries have adopted laws giving themselves authority to investigate torture, genocide and other human rights crimes anywhere in the world. Although it is rare for prosecutors to win such cases, those targeted can face arrest if they travel abroad.

It's possible that Obama, Holder, and everyone else involved in the bizarre decision to release highly classified memos detailing our interrogation techniques into the wide world, were so naive and feckless that they literally had no idea that a Spanish court (and others) would rake over such a treasure-trove of intel for anything they could use against the United States. But it's equally plausible that the administration knew exactly what would eventuate from the release... and they did it anyway, consciously and deliberately. It is, after all, a wonderful way to push forward the criminal prosecution of the former administration without Obama himself, or his deputies, getting blood on their own hands: Garzón is willing (eager!) to do it for them.

But they cannot escape their own complicity so easily. I strongly believe that even most rank and file liberals will rise up in disgust at the idea that any cockamamie court anywhere in the world can announce that it has awarded itself "authority to investigate torture, genocide and other human rights crimes anywhere in the world" -- then demand the arrest and extradition of Americans for actions committed in some third-party country (or in America itself!) that are not crimes here... but are crimes in the country housing the court.

Should we hand over American government officials to sharia courts in Iran, to be prosecuted for the "crime" of insulting Islam? Well, don't we want to improve relations with that country, hoping they wil promise, crescent their hearts, to stop building nuclear bombs? Or should we extradite a president for refusing to join in some EU-enforced policy to cut carbon use by 80%?

Just how far is the Obama administration willing to go to impose "change we can believe in" upon the American people. More to the point, just how far are we willing to let them go?

Hatched by Dafydd on this day, April 30, 2009, at the time of 2:00 PM

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Comments

A well-posed question. Here's another: how do we STOP them from destroying the country?

The above hissed in response by: snochasr at April 30, 2009 7:28 PM

The following hissed in response by: Chris Balsz

"More to the point, just how far are we willing to let them go?"

Loss-of-soveriegnity paranoia AND a call for recruitment!!! Call the DHS!

The above hissed in response by: Chris Balsz at May 1, 2009 7:58 AM

The following hissed in response by: ~brb

Careful, Dafydd. You're perilously close to violating some stupid European hate-speech law here.

Oops. I didn't mean to juxtapose "stupid" and "European." I meant "enlightened and universally beneficial Europeans, who have gifted the world with so many wonderful things in the Twentieth Century, such as mustard gas, Auschwitz, Benny Hill, and the worldwide detritus of colonial despotism."

The above hissed in response by: ~brb at May 1, 2009 9:02 AM

The following hissed in response by: RFYoung

"I strongly believe that even most rank and file liberals will rise up in disgust at the idea that any cockamamie court anywhere in the world can announce that it has awarded itself "authority to investigate torture, genocide and other human rights crimes anywhere in the world" -- then demand the arrest and extradition of Americans "

I think you vastly over estimate the connection of the Left to the United States. They love and covet the wealth of the US, they want to inhabit the land, but they want to destroy the concept of the US, its foundations, and the memory of the people who built it.

The left will side with anyone or any thing, no matter how vile, if it aides in the destruction of the United States.

The above hissed in response by: RFYoung at May 1, 2009 12:00 PM

The following hissed in response by: Trickster

I strongly believe that even most rank and file liberals will rise up in disgust at the idea that any cockamamie court anywhere in the world can announce that it has awarded itself "authority to investigate torture, genocide and other human rights crimes anywhere in the world" -- then demand the arrest and extradition of Americans for actions committed in some third-party country (or in America itself!) that are not crimes here... but are crimes in the country housing the court.

I expect they would. In fact, I'd lay 100-1 odds that the Obama Administration would also rise up in disgust over that notion. Holder, as it turns out, said nothing of the sort.

All that his comments signaled was compliance with long-established American law: specifically, the legal principle of "comity," which governs the extent to which American courts recognize the acts of foreign legal tribunals. The authority of such acts is neither rejected out of hand nor automatically recognized and acceded to by American courts.

Instead, courts evaluate whether to recognize the authority of foreign legal proceedings on a case-by-case basis according to principles that have been developed over centuries of common law jurisprudence. Only in unusual circumstances would comity be extended to a sharia court: generally, it would not, and the acts of such courts would hold no weight in an American courtroom.

Since the Spanish legal system is generally similar to the American legal system, the actions of Spanish courts generally ARE recognized. However, the key terms is "generally." I'm not going to hazard a guess as to how American courts would treat the actions of which you speak, but I will say that no country's courts are automatically ceded authority by our own, not even Britain's.

The starting point, however, is exactly what Holder says it is: we will "look at any request that would come from a court in any country and see how and whether we should comply with it." That's nothing but black-letter law. It has been the law of this land since very early in the Republic.

The above hissed in response by: Trickster at May 1, 2009 12:33 PM

The following hissed in response by: cdor

Trickster, can you please post a single precedent case where a US court has even "looked at" a request by a foreign court for evidence to prosecute an authorized agent acting under orders of the POTUS during a time of war for actions taken under the orders of the POTUS?

You have "tricked" my curiosity.

The above hissed in response by: cdor at May 1, 2009 2:28 PM

The following hissed in response by: Trickster

No, I'm not going to do case-specific research.

But the specifics of the Spanish court's request aren't really the question, anyway. If a Spanish court formally requested evidence, the request would be officially considered, that I can guarantee you, by this Justice Department or any other. I don't care if they are requesting evidence that the President is actually a robot made out of green cheese, so long as it's a formal request. Official judicial requests are not simply stamped REJECTED by the receptionist and put back in the return mail. There's a process to follow, and it gets followed.

The law tends to work in mechanical ways. That's kind of what makes it the law: its processes have to be predictable. Here's an analogy: if you file a frivolous and ridiculous lawsuit, ultimately you might wind up having to pay the other side's legal fees and/or even sanctions (fines), but before that happens the court will officially consider your lawsuit and you will absolutely 100% and for certain have the chance to be heard by the court before your suit can be tossed out. The process schematics are laid out that way.

Here - although I'm no comity expert - I'm next thing to certain that the sort of request you describe WOULD ultimately be rejected. But I'm talking process, not result.

I think you've got hold of the wrong end of the snake here; you respond as though Holder were setting policy at a cabinet meeting or perhaps filing an amicus curae -- something that would require him to speak in legalese.

This, however, was a press conference; Eric Holder was not there as the chief lawyer of the United States -- he was there in his capacity as a top cabinet member of the Obama administration, the guy in charge of the Department of Justice.

He was being political, not legal. Thus his statement must be read in a political, not legal, context.

If we were speaking of actual Executive policy (regulation, trade agreements, treaties), you would have a good point. Of course, I wouldn't have written the post, if that were all that was going on.

But instead, we are parsing a politics-based statement, enunciated at a political event (a presser)... a statement that fits hand in glove with a similar politics-based statement... the one not that many days ago where Barack H. Obama said that he would allow Eric Holder to decide whether to launch a criminal investigation into top officials of the Bush administration and perhaps criminally prosecute them for "torturing" detainees... where "torture" is, of course, that perfect example of Argument by Tendentious Redefintion: Torture now means, "Any method of interrogation that causes a terrorist detainee to say things he would rather have kept secret from us."

Politically speaking, it's impossible to read yesterday's Holder statement honestly without linking it to earlier statements from prominent Democrats, both in Congress and in the administration, to the effect that the administration and the 111th Congress encourage the crimialization of policy differences between the current administration and the previous one.

Bearing that in mind, it's very clear that when Holder says "Obviously, we would look at any request that would come from a court in any country and see how and whether we should comply with it," he is not just enunciating the weak version of law -- like, "Obviously, if some crackpot court somewhere demands evidence that the American government is run by Jewish extraterrestrials, we'll go through the motions" -- but rather in the sense of, "Yep, those foreign courts make an excellent case for Bush, Cheney, Gonzales, Bybee, Feith, Rumsfeld, the Professor, and Mary Ann being war criminals, and we're going to do everything in our power to encourage them to proceed at flank speed."

The only way to read it the first way is to see nothing but trees -- and completely miss the forest. Or to quote Roger Waters, "All in all, it's just another brick in the wall."

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